Nat Hentoff on the Supreme Court (04/22/06)

The above  is Time Magazine’s depiction of Jose Padilla. 

A few days ago, I wrote about the shake-up at the Village Voice.  Ward Harkavy reassigned.  Media critic, Press Clips columnist Sydney H. Schanberg quitting.  James Ridgeway out.    At least Nat Hentoff is still writing  his column, “Liberty Beat” for the Village Voice.   “Mutiny at the Supreme Court: The Roberts Court signals the president that he is not immune from the Constitution.”  published April 16,  finds encouragement in  two recent events that

 regarding the most dangerous thrust of Bush’s reign, his continuing, unprecedented expansion of his powers as commander in chief, the court is finally and crucially alarmed.

 March 30  the Court looked at Jose Padilla v. Hanft, a re-filing of the case the Bush administration had tried to remove from the Supreme Court’s arena:

At last, when the Supreme Court indicated it would consider listening to his appeal, the Bush administration—fearing that, My God, there might be a majority to declare Bush’s “enemy combatant” designation unconstitutional—pulled a not-so-hidden-ball trick.

Pulling Padilla out of the military brig and into our real justice system, the administration filed a mélange of new charges [my link]—without any mention of the “radioactive dirty bomb” that John Ashcroft had tried to scare us with. When that happened, a majority of the high court—clearly resentful of the Bush team’s trying to game the system by preventing the court from ruling on the lawfulness of putting people away as “enemy combatants”—decided to hear Padilla once more.

On  June 28,  2004, the late Chief Justice William Rehnquist, writing for the majority,  dismissed  the case Rumsfeld v.  Padilla 5 to 4  on a technicality  about jurisdiction, but speaking for the court he acknowledged that the  case was “indisputably of profound importance.”  

 Padilla’s attorney’s refiled, encouraged by decision affirmed by all but Justice Clarence Thomas that the two-year-long detention of an American citizen, Yaser Esam Hamdi, had either been invalid from the beginning or had become so, for constitutional or statutory reasons.   A second ruling issued that day held that  federal courts might have jurisdiction to hear claims of illegal detention from those held in other foreign locations. 

Hentoff writes that on March 30, while only Justices Ginsburg, David Souter, and Stephen Breyer wanted to proceed with a second appearance before the court by Padilla,  

in a concurring opinion by John Paul Stevens, Anthony Kennedy (again!), and most notably, Chief Justice Roberts, it became clear that this case is still very much alive… although they decided to hold off on the “enemy combatant” ruling until Padilla goes through our regular courts, a majority of the justices showed they’re aware that even if he is found innocent of the new charges, the administration can still put him into military prison again as an “enemy combatant.”

Justices  Clarence Thomas, Antonin Scalia, and now Samuel Alito appear to support the  president  in his method of

removing terrorism suspects from our system of laws by setting them apart as “enemy combatants” imprisoned in military cells indefinitely, incommunicado, without access to lawyers, and without charges—as he did to Padilla.


Hentoff also reports that during oral arguments on March 28 for  Hamdan v. Rumsfeld,  the case considering the constitutional legitimacy of the military commissions at Guantánamo, created solely by the president  and  whether the Supreme Court itself has the right to hear the case.

 …Justice Ruth Bader Ginsburg said to Solicitor General Paul Clement: “I thought it was the government position that these enemy combatants do not have any rights under the Constitution and laws of the United States.”

“That is true, Justice Ginsburg,” the solicitor general said. The unmistakable subtext of the government’s answer was: “So why is this court interfering with the inherent constitutional powers of the commander in chief in the war on terrorism? Get lost!”

Hentoff says this reply angered at least five on the court,  most notably Justice Anthony Kennedy,  and posits that  their questions and comments

revealed a strong likelihood that the court will disagree with the president’s skewed concept of due process (basic fairness in our rule of law) in inventing these military commissions….

Hentoff had written in greater detail about Hamden in his April 9 column, “Supreme Court Judges Bush: At last, Bush’s assumption of supremacy over Congress and the courts is in peril.”




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